I have tried to imagine what a majority opinion for Dobbs v. Jackson Women’s Health Organization aimed at persuasion — or at least explanation — could look like. In doing so, I’ve tried to address some of the best, good faith arguments I’ve seen from the pro-abortion rights community. How can the court overturn its own precedent after 50 years? What happened to the “settled law” that we heard so often during these confirmation hearings? Why should we care what white men thought about women’s rights in 1790? How can we be sure same-sex marriage isn’t next on the chopping block?
The justices are not partisans in robes. But the future of our experiment in self government may depend on their ability to prove it. They must do more to reassure the country that there are no permanent winners and losers and to protect their own institution from the other branches, which are trying to save themselves by fingering the court for their own failures. What could create more contrast with those branches than if the court showed more humility in their own fallibility and generosity toward opposing viewpoints?
Here’s what I wish Alito had written…
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